New Delhi: On day nine of the hearings on Article 370’s dilution, senior advocate Nitya Ramakrishnan categorically denied that Article 370 was temporary and called claims of its temporariness “fallacious”.

“Article 370 was called temporary when enacted because at the time, in 1949, it was uncertain whether Jammu and Kashmir would continue to be a part of India at all,” Ramakrishnan explained. She said that it was viewed as “temporary” until the state’s political and constitutional links with India weren’t permanent.

However, that changed in 1954 when the Constituent Assembly of J&K passed a unanimous resolution ratifying the accession and five years later the state’s constitution was adopted which declared that J&K was irrevocably an integral part of India, Nitya Ramakrishnan argued. 

She said that the ‘impugned orders’ (the series of orders that preceded Article 370’s abrogation) “are an assault on the Instrument of Accession itself and, by extension, on the integration of Jammu and Kashmir with the Indian Union”.

Also read: Article 370 Hearing: SC Told Extreme Examples Are Necessary To Solve Extreme Cases

Ramakrishnan argued that only the Constituent Assembly of Jammu and Kashmir that was directly elected by the people of the region could recommend abrogation or modification of Article 370 which it had chosen not to do. “The State Constituent Assembly therefore recommended integration with India, with Article 370 of the Indian Constitution continuing to govern the nature of the accession,” she said.

She called the “evisceration of Article 370 and the downgrade of the region’s status” a breach of the “solemn bilateral pact between the Indian Union and the people of Jammu and Kashmir” through unilateral declarations by the Union government that the people of the state had no say in.  

She said that this was akin to the “agent strangling the principal and asking the court to treat it as suicide”.

Ramakrishnan also argued on the vital difference between ‘integration’ and ‘control’, linking the difference to the essence of Indian democracy. “Integration is not a measure of how much control the Centre has. It is not a function of Central control or power. It would be wrong to say that people in Union territories are more integrated than people in a Schedule VI area,” she said, adding that this “is not how our democracy works.”

Chain of proxies

Ramakrishnan outlined the process of how a chain of ratifications was done by “proxy” and “changing of meanings” that preceded the abrogation of Article 370. “First, a non-existent State Legislature, and later the Governor, the President, and Parliament, in quick succession, became the chain of proxies for a “Constituent Assembly,” she said. 

Also read: Article 370 Hearing in SC: Petitioners Question Conversion of State Into a UT

“All of this was engineered on the basis of the recommendation of a Governor who had no power to concur in the absence of a Council of Ministers,” Krishnan argued, adding that such a governor is not recognised by Article 370.

She said that a mere amendment in an interpretation clause 72 years later cannot equate any other body with the Constituent Assembly simply by a “majority vote in Parliament managed by a party in power”.

State government’s consent insufficient to change Article 370

Ramakrishnan argued that since the Constituent Assembly of J&K ceased to exist in 1957, in terms of the existing Constitution of India, this power cannot be contrived through Article 368, LiveLaw reported

“The will of the people of J&K is integral to the mode of governance specified in Article 370. A process which systematically with mala fide intent erased the will of people of J&K can never legitimately affect Article 370,” she was quoted by LiveLaw as saying.

Further, Ramakrishnan deliberated on why governor’s rule was imposed in J&K in 2018.

Governor’s rule was imposed on June 20, 2018, because the Bharatiya Janata Party (BJP) withdrew from the coalition government with the Peoples Democratic Party (PDP), LiveLaw reported. 

The governor dissolved the assembly soon after even though the National Conference and PDP were willing to form a government and had the majority along with other small parties, the report said. 

“What earthly reason did the governor have to dissolve the house within 30 minutes of two political parties saying that they were ready to form a government?” Ramakrishnan was quoted by LiveLaw as saying.

Ramakrishnan also pointed out that the then governor of Jammu and Kashmir, Satyapal Malik had admitted in an interview to The Wire that he had no information till the night of August 4, 2019, about any attempt by the Union to end the autonomy guaranteed to J&K under Article 370. 

Ramakrishnan ended her submissions by saying “Even if J&K flows with milk and honey, the argument that in order to secure people their constitutional rights and development, we have to destroy their entity and statehood is an unacceptable argument.”

“The British took over and ruled India with a series of legislations and orders – that did not legitimise their rule. Free India cannot be permitted to follow that course,” Ramakrishnan said in her submission to the court.

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